Court File and Parties

COURT FILE NO.: CV-21-0000 1308-0000 DATE: 2022/03/29 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RAYMOND CLAUDE HARDY, Applicant AND: THE ESTATE OF LOUISE WINTERS HARDY, Respondent

BEFORE: Justice I.F. Leach

COUNSEL: Alfred John Belecky, for the Applicant The respondent estate formally unrepresented

HEARD: In writing

Endorsement

Introduction

[1] Before me is an application brought in writing and without formal notice by Mr Raymond Hardy, the surviving spouse of Louise Hardy, who died on March 11, 2021.

[2] In his formal Notice of Application, Mr Hardy seeks an order:

a. vesting the couple’s matrimonial home, known by its municipal address as 7076 Longwoods Road, in the City of London, Ontario, (and more formally described in the application material filed, including a formal legal description set forth in a schedule attached to the draft Order submitted with the application), solely in the name of Mr Hardy; and

b. an order “that upon the registration in the Land Registry Office for the Land Titles Division of Middlesex (No.33) of an Application for Vesting Order in the form prescribed by the Land Titles Act, the Land Registrar is hereby directed to enter the Applicant, Raymond Claude Hardy as the registered owner of the Real Property”.

[3] After reviewing and considering the application material filed by Mr Hardy, I have finalized and signed the submitted draft Order, after making certain indicated revisions.

[4] Having regard to the somewhat unusual nature of the relief requested, and the manner in which that relief was sought, I nevertheless think it appropriate to explain in more detail why I found the granting of that relief to be appropriate.

Further background

[5] By way of further background, established to my satisfaction by the filed affidavits sworn by the Applicant and the Applicant’s lawyer Mr Belecky, and the attachments thereto:

a. On or about May 2, 1986, Mr and Mrs Hardy attended at the law office of Mr Belecky in connection with their agreement to purchase a residential property from Douglas and Marilyn McConnell. The property, known at the time by its municipal address as 22 Main Street, Lambeth, Ontario, is now known, (following annexation of the Town of Lambeth with the City of London, and redesignation of various municipal addresses to avoid any resulting confusion), by its current municipal address as 7076 Longwoods Road, London, Ontario. It is referred to hereafter as “the subject property”.

b. According to the uncontradicted evidence of Mr Hardy, he and his wife instructed Mr Belecky to complete the real estate transaction in a manner that resulted in Mr and Mrs Hardy becoming registered joint tenants of the subject property; i.e., with each spouse then having a right of survivorship in relation to the subject property upon the death of the other. [1]

c. For reasons unknown, (but which Mr Belecky candidly attributes to probable inadvertence), the relevant Transfer/Deed that was prepared to complete the real estate transaction in relation to the subject property simply indicated that the property was being transferred to Raymond Claude Hardy and Louise Winters Hardy, leaving complete blanks in terms of indicating the capacity in which they were taking title. [2] Not surprisingly, in the circumstances, the resulting registration on the relevant Parcel Register simply indicates that the property was the subject of a “TRANSFER” to “HARDY, RAYMOND CLAUDE” and “HARDY, LOUISE WINTERS”, on May 2, 1986. There is no indication that the two spouses took title to the subject property as joint tenants; i.e., as opposed to taking title to the subject property as tenants in common.

d. Mrs Hardy died intestate, (i.e., without any known will), on March 11, 2021. At the time, she was still married to Mr Hardy, and living with him in the subject property. Her sole issue was an adult son; i.e., Samuel Anthony Paul Frances Gardiner.

e. As the surviving spouse of Mrs Hardy, Mr Hardy was entitled to apply for formal appointment as her Estate Trustee Without a Will. To date, he nevertheless has not done so, as such an application was thought to be unnecessary. Without limiting the generality of the foregoing, it was thought that her interest in the matrimonial home had passed to Mr Hardy by right of survivorship.

f. Discovery of the true state of the current registry apparently led to the current application for the relief set out above. The request is supported by a consent signed by Mr Hardy, Mr Gardiner and Mr Belecky.

Service requirements

[6] The application material filed indicates that the application is being brought “without notice”.

[7] That appears to be an accurate characterization from a formal perspective, insofar as there is nothing to indicate that the application was formally served on Mrs Hardy’s estate representative, (despite her estate is clearly affected by the relief sought), no doubt because there has been no formal appointment in that regard.

[8] However, the underlying reality is that all those entitled to benefit from Mrs Hardy’s estate on an intestacy, (i.e., her surviving spouse and son), are consenting to the requested relief.

[9] In the circumstances, I think it appropriate to make an order pursuant to Rule 2.01(1)(b) of the Rules of Civil Procedure, dispensing with the need for any formal service of the application record, as such service is unnecessary in the circumstances. An appropriate provision as added to the draft Order accordingly.

Substantive relief

[10] Apart from setting out the relevant facts, the application material cited no authority for granting of the requested relief apart from general references to subsections 25(1) and 25(2) of the Land Titles Act, R.S.O. 1990, c.L.5, (“the LTA”), and section 100 of the Courts of Justice Act, R.S.O. 1990, c.C.43, (“the CJA”). However:

a. Subsection 25(1) of the LTA simply provides that “Officers appointed under this Act shall obey the order of any competent court in relation to registered land on being served with the order or a certified copy thereof.”

b. Subsection 25(2) of the LTA follows up on that obligation by requiring the land registrar, on due proof of such a vesting order, to make any consequential entries in the register that may be necessary to give effect to the vesting order – subject to the applicant possibly being required to furnish further evidence showing that another person is bound by the order although not a party to the underlying proceeding that generated the vesting order.

c. Section 100 of the CJA is the provision confirming the court’s general authority to make vesting orders in appropriate cases; i.e., confirming that the court “may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed”.

[11] The citation of those legislative provisions accordingly confirms that the court generally has the ability to make a vesting order, and what is to happen when such an order is made in relation to land now governed by the LTA.

[12] They say nothing about how or why the court should make the requested vesting order in this particular case.

[13] While I think there is a permissible and appropriate route to granting the relief requested in this case, I do not think the matter as straightforward as the application material might suggest. In that regard:

a. Through long-standing principles of common-law, when real property or personal property was granted to two or more persons with no words of severance, the persons were considered joint tenants, with a right of survivorship in relation to the property.

b. However, it was also well established that the Courts of Equity did not favour joint tenancy; e.g., because the entire property subject to such a joint tenancy at common law would belong to the survivor, and the representatives of the deceased would receive nothing. Such an outcome was not viewed as fair or “equitable”, except – possibly - from the standpoint of pure chance determining which owner would take by right of survivorship.

c. Equity therefore always leaned in favour of tenancy in common, rather than joint tenancy, and over time developed a rule of construction that effectively reversed the common law presumption in such cases. In particular, when real or personal property was granted to two or more persons, in the absence of an express declaration as to the beneficial interest, Courts of Equity would treat the persons as tenants-common of the beneficial interest, and any party entitle to the whole estate by right of survivorship at common law was required to hold the deceased owner’s erstwhile share of the property in trust for the representatives of the deceased. The practical result was a presumption of tenancy in common, rather than a joint tenancy, in the case of any grant to two or more persons without an express indication that they were to receive title as joint tenants. [3]

d. In time, legislatures embraced the rule of construction developed by the courts of equity. Here in Ontario, that embrace and restatement currently takes the form of subsection 13(1) of the Conveyancing and Law of Property Act, R.S.O. 1990, c.C.34, (“the CPLA”), which implements a conclusive presumption subject to one indicated exception, and reads as follows:

13. (1) Where by any letters patent, assurance or will, made and executed after the 1st day of July 1834, land has been or is granted, conveyed or devised to two or more persons, other than executors or trustees, in fee simple or for any less estate, it shall be considered that such persons took or take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the facts of the letters patent, assurance or will, that they are to take as joint tenants.

[Emphasis added.]

e. Insofar as the form of the underlying executed Transfer/Deed in this case was an assurance conveying the specified property from Mr and Mrs McConnell to Mr and Mrs Hardy, without any intention whatsoever appearing on the face of the document that they were intended to take the property as joint tenants, s.13(1) of the CLPA therefore dictates that Mr and Mrs Hardy took the property as tenants in common, such that Mr Hardy has no right of survivorship, and therefore no right to an order vesting the entire specified property in him alone unless and until it passes to him through the estate of Mrs Hardy.

f. Nor does it seem possible for Mr Hardy to secure an effective change to that Transfer/Deed, (i.e., by the court adding wording to the face of document retroactively to include an indication that Mr and Mrs Hardy were to take the specified property as joint tenants), through the court’s ability to remedy certain inadvertent mistakes through rectification. Without limiting the generality of the foregoing:

i. Rectification is an equitable remedy available to correct a document that fails to accurately record the true agreement of parties to the document. It is not available to fill a gap in the parties’ true agreement. [4]

ii. There is nothing in the material before me to suggest that the true agreement reached between all parties to the relevant transfer agreement, including Mr and Mrs McConnell, intended to include a term indicating that Mr and Mrs Hardy were to take the property as joint tenants. The confirmed intention of Mr and Mrs Hardy alone, in that regard, would not suffice to provide a sufficient basis for rectification. At best, their unfulfilled intention/desire merely highlights a gap in the transfer agreement that Mr Hardy would like to fill retroactively.

iii. Moreover, one might question whether the equitable doctrine of rectification could be employed in any event to amend the transfer retroactively in that particular way. Again, equity leaned heavily in favour of tenancies in common, and against joint tenancies.

g. However, the particular circumstances of this case involve a situation where Mr Hardy essentially seeks relief because the relevant registration under the LTA did not indicate that he and Mrs Hardy took the specified property as joint tenants; i.e., as it undoubtedly would have done had their solicitor followed their instructions to ensure that the finalized Transfer included provisions/terms indicating that they were to take the specified property as joint tenants, as the McConnells inherently had no interest in whether the Hardys would take title as joint tenants or tenants in common. If the relevant registration under the LTA had indicated that the Hardys took title to the specified property as joint tenants, Mr Hardy would then have been in a position, after the death of Mrs Hardy, to request removal of her name from the registry pursuant to s.123 of the LTA, which provides a mechanism for removal of a deceased joint tenant’s name from the relevant parcel register.

h. Having regard to the above, in my view the situation arguably gives rise to the wider statutory power of rectification conferred by s.160 of the LTA, (as opposed to the equitable doctrine of rectification), with s.160 of the LTA reading in part as follows:

160. Subject to any estates or rights acquired by registration under this Act, if a person is aggrieved by an entry made, … the person aggrieved by the entry … may apply to the court for an order that the register be rectified and the court may either refuse the application with or without costs to be paid by the applicant or may, if satisfied of the justice of the case, make an order for the rectification of the register.

[Emphasis added.]

i. In my view, the particular circumstances established in the application material satisfy me that “the justice of the case” would warrant an order that the relevant register entry be amended to indicate that Mr and Mrs Hardy took title to the specified property as joint tenants. Without limiting the generality of the foregoing:

i. As noted above, the uncontradicted evidence indicates and confirms that was the intention of Mr and Mrs Hardy, who instructed their solicitor accordingly.

ii. As noted above, Mr and Mrs McConnell inherently had no interest in how the Hardys received title; i.e., in whether they received title as tenants in common or as joint tenants. In my view, had the solicitor for Mr and Mrs Hardy followed through on their instructions, a term indicating that they took as joint tenants would have been requested and included in the underlying Transfer/Deed, in turn leading to a corresponding register entry indicating that Mr and Mrs Hardy took title to the property as joint tenants.

iii. There is nothing in the material before me to suggest that a retroactive amendment of the relevant register entry would prejudice or potentially prejudice anyone without their consent. In particular:

1. As noted above, Mr Hardy and Mr Gardiner apparently are the only potential beneficiaries of Mrs Hardy’s estate, and both have consented to an outcome whereby the entirety of the specified property would vest in Mr Hardy alone, as it would have done by a right of survivorship properly confirmed at the time Mr and Mrs Hardy took title to the specified property.

2. As the specified property was a matrimonial property, it seems most unlikely that any charge or encumbrance would have been taken or placed in relation to Mrs Hardy alone, as opposed to both spouses, especially given the current state of the register. In any event, the material before me suggests that all previously registered charges against the property, following its acquisition by Mr and Mrs Hardy, have been deleted.

j. That rectification of the register obviously was not the relief requested by Mr Hardy in his application, and the form of relief in respect of which Mr Hardy, Mr Gardiner and Mr Belecky have filed an express written Consent. In the circumstances, I considered denying the Order specifically requested, with an indication that a further application be brought seeking such rectification relief in the alternative, for the reasons outlined above. However, I believe that would be a triumph of form over substance in this particular case, for the following reasons:

i. As noted above, retroactive rectification of the register pursuant to s.160 of the LTA, to indicate and confirm that Mr and Mrs Hardy took property as joint tenants as they intended, would have enabled Mr Hardy to then bring an application, pursuant to s.123 of the LTA, requesting removal of Mrs Hardy’s name from the register as a deceased joint tenant. That process would have culminated with Mr Hardy being left as the sole registered owner of title to the specified property; i.e., the same outcome that would flow from the formal relief sought by Mr Hardy’s current application.

ii. The process contemplated by s.123 of the LTA requires an application “containing the evidence specified by the Director of Titles”. Currently, (as indicated in bulletin 2000-6 issued on December 20, 2000, by Service Ontario), the evidence that must be registered in support of such a s.123 “Survivorship Application” is completion of Forms 42 and 43 or Regulations 690, issued under the LTA, or use of the following statements made and signed by a solicitor:

1. a statement that the applicant held the property as a joint tenant with the deceased; …

2. a statement that, by right of survivorship, the applicant is entitled to be the owner, as a surviving joint tenant; and

3. a statement indicating the date of death of the deceased joint tenant.

iii. However, requiring Mr Hardy and his solicitor to make that application and supply those statements after formal rectification of the register would not advance the situation beyond where it lies today, in terms of providing adequate guarantees that Mr Hardy would be entitled to take by right of survivorship once the register had been rectified. In particular, for the reasons outlined herein, the application material filed by Mr Hardy and his solicitor are sufficient to satisfy me that the justice of the case would warrant the register being rectified so as to confirm that Mr Hardy held the specified property as a joint tenant with Mrs Hardy, and that Mr Hardy is entitled to be the sole owner of the specified property as a surviving joint tenant. Mr Hardy and his solicitor also have filed a copy of Mrs Hardy’s death certificate, confirming that she died on March 11, 2021.

k. In the result, requiring Mr Hardy and his solicitor to bring a further application or amended application to comply with the procedures of s.123 would entail needless waste and delay. In my view, these are circumstances where the court can and should use its discretionary authority to grant the requested vesting order, pursuant to s.100 of the CJA, together with the ancillary relief sought by the Applicant.

Conclusion

[14] In the result, I have finalized and signed the draft Order submitted with Mr Hardy’s application material, after adding an appropriate paragraph to confirm that formal service of the application was unnecessary for the reasons outlined above.

[15] Perhaps it would go without saying, but no costs of the application were sought, and none are ordered.

“Justice I.F. Leach” Justice I.F. Leach Date: March 29, 2022

[1] In his sworn affidavit, Mr Hardy confirms that was the case. In his affidavit, Mr Belecky candidly acknowledges that he has no direct personal recollection of his meeting with Mr and Mrs Hardy, so many years after the fact. Mr Belecky also indicates that his firm’s relevant real estate file was reviewed and “culled” at some point in the intervening years, such that the documents which would have contained and reflected the instructions from Mr and Mrs Hardy, (i.e., the letter of requisitions and Direction Regarding Title), no longer exist. In the circumstances, there is nothing to contradict Mr Hardy’s sworn evidence concerning the nature of the intended transaction he and his wife intended and instructed Mr Belecky to complete. Nor is there anything before me to suggest that Mr Hardy’s evidence in that regard is unreliable or lacking in credibility. In relation to the former, the real estate transaction inherently was significant and relatively isolated from his perspective, (i.e., the purchase of the matrimonial home in which he and his wife lived for approximately 35 years), and the associated details seem likely to stand out in his memory. In relation to the latter, there is little or no apparent reason for Mr Hardy to be disingenuous, as he stands to be the primary beneficiary of his wife’s estate in any event.)

[2] In his sworn affidavit, Mr Belecky notes that leaving such a blank, in relation to the capacity in which the property was being taken, was contrary to the standing practice of his firm. Hence his belief that the failure to include any indication in that regard was the result of probable inadvertence.

[3] See, for example, Snell’s Equity, 29th ed., London, Sweet & Maxwell, 1990, at p.36.

[4] See 2484234 Ontario Inc. v. Hanley Park Developments Inc., 2020 ONCA 273, at paragraph 2.